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PETITIONER: RAMJI LAL MODI

       Vs.

RESPONDENT: THE STATE OF U.P.

DATE OF JUDGMENT: 05/04/1957

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) IMAM, SYED JAFFER DAS, S.K. MENON, P. GOVINDA SARKAR, A.K.

CITATION:  1957 AIR  620            1957 SCR  860

ACT:    Insult  to  Religion-Law making such insult  an  offence- Constitutional  validity--If violates freedom of speech  and expression--Indian  Penal Code (Act XLV of 1860),  s.  295A- Constitution of India, Arts. 19(1)(a), 19(2), 25, 26.

HEADNOTE:  This was a petition challenging the constitutional validity of  s.  295A of the Indian Penal Code and for  quashing  the petitioner’s conviction thereunder for publishing an article in a monthly magazine of which he was the printer, publisher and  the  editor.  It was contended on his behalf  that  the impugned section infringed his fundamental right to  freedom of  speech and expression conferred by Art. 19(1)(a) of  the Constitution   and  was  not  a  law   imposing   reasonable restrictions  on the right in the interests of public  order under cl. (2) of Art. 19, which alone could have afforded  a justification for it.   Held,  that  s.  295A of the Indian Penal  Code  was  well within  the  protection  of  Cl.  (2)  of  Art.  19  of  the Constitution and its validity was beyond question.   The  expression  "in the interests of"  occurring  in  the amended  Cl.  (2) of Art. 19 had the effect  of  making  the protection  afforded by that clause very wide and a law  not directly  designed  to maintain public order would  well  be within its protection if such activities as it penalised had a tendency to cause public disorder. Debi  Soron v. The State of Bihar, A.I.R. (1954)  Pat.  254, referred to. It  was  absurd  to suggest that insult to  religion  as  an offence  could  have  no bearing on public order  so  as  to attract  cl.  (2) Of Art. 19 in view of  the  provisions  of Arts.   25   and  26  of  the  Constitution   which,   while guaranteeing freedom of religion, expressly made it  subject to public order. 861 Nor,  having  regard to the language and ingredients  of  S. 295A  of the Indian Penal Code, could it be  contended  that the  restrictions imposed by it could be used  for  purposes

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other   than  those  falling  within  the  limits   of   the Constitution. Romesh  Thappar v. The State of Madras, (1950)  S.C.R.  594; Brij  Bushan  v. The State of Delhi, (1950) S.C.R.  605  and Chintaman Rao v. The State of Madhya Pradesh, (1950)  S.C.R. 759, held inapplicable.

JUDGMENT:    ORIGINAL CRIMINAL JURISDICTION: Petition No. 252 of 1956. Petition  under  Article  32 of  the  Constitution  for  the enforcement of fundamental rights.   Veda   Vyasa,  S.  K.  Kapur  and  Ganpat  Rai,  for   the petitioner.   G. C. Mathur and C. P. Lal, for the respondent.     1957.  April 5. The Judgment of the Court was  delivered by   DAS  C.J.-This  is a petition filed under Art. 32  of  the Constitution of India praying for a declaration that s. 295A of the Indian Penal Code is ultra vires and unconstitutional and  for  a writ in the nature of  certiorari  quashing  the petitioner’s conviction under that section and for ancillary reliefs.  The  material  facts  lie within  a  narrow  compass.   The petitioner is the editor, printer and publisher of a monthly magazine called Gaurakshak.  The magazine is devoted to  cow protection.   In  July  or  August,  1954,  a  Hindi   Daily newspaper  named  ’Amrit Patrika’ of Allahabad  printed  and published an article or a cartoon about a donkey on which an agitation was started by the muslims of Uttar Pradesh.   The editor  and  printer and publisher of ’Amrit  Patrika’  were prosecuted  by  the  State, but they  have  been  eventually acquitted by the High Court of Allahabad.  In the  meantime, in   its  issue  for  the  month  of  Kartik  Samvat   2009, corresponding to November, 1952, an article was published in the  petitioner’s  magazine ’Gaurakshak.’  On  December  12, 1952,  the State Government ordered the prosecution  of  the petitioner on the basis of the said article.  Accordingly on June  8,  1953,acomplaint  was filed in  the  court  of  the District Magistrate, Kanpur, 111 862 by the Senior Superintendent of Police, Kanpur, against  the petitioner  for  offences  under ss. 153A and  295A  of  the Indian Penal Code.  The Magistrate by his order dated August 5, 1953, charged the petitioner under ss. 153A and 295A  and committed the petitioner to the Sessions Court of Kanpur for trial.   The  petitioner pleaded not  guilty.   The  learned Sessions  Judge,  by his judgment dated November  16,  1953, acquitted  the  petitioner of the charge under s.  153  Abut convicted  him under s. 295A and sentenced him to 18  months rigorous  imprisonment  and  a fine of  Rs.  2,000  and,  in default  of  payment  of  the  fine,  to  further   rigorous imprisonment of 4 months.  The petitioner filed an appeal to the  High Court at Allahabad.  The learned Single Judge,  by his  judgment dated October 25, 1956, held that the  article was published with the deliberate and malicious intention of outraging  the  religious feelings of muslims and  that  the petitioner  was  guilty under s. 295A of  the  Indian  Penal Code.   The learned Judge, however, reduced the sentence  of imprisonment  to 12 months and -the fine from Rs.  2,000  to Rs.  250 only.  An application for certificate to appeal  to this  Court under Arts. 132 and 134 having been rejected  by the  High  Court on October 30, 1956, the  petitioner  moved

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this Court for special leave to appeal from the judgment  of the  Allahabad  High  Court dated  October  25,  1956.   The petitioner  also on December 5, 1956, presented the  present petition under Art. 32 for the reliefs mentioned above.  The petitioner also made an application in this Court along with the  writ petition for stay of the sentence passed  on  him. On  December  18, 1956, both the stay  application  and  the petition  for  special leave were dismissed by  this  Court. The  petition  under Art. 32 has now come  up  for  hearing. Presumably the petitioner has surrendered and is  undergoing the sentence of imprisonment. Learned counsel appearing in support of this petition  urges that  s.  295A of the Indian Penal Code is ultra  vires  and void  inasmuch as it interferes with the petitioner’s  right to  freedom of speech and expression guaranteed to him as  a citizen of India by Art. 19(1)(a) of our Constitution.   The contention is that this section 863 cannot   be   supported  as  a   law   imposing   reasonable restrictions on the exercise of the right conferred by  Art. 19(1)(a)  as  provided  in  cl. (2)  of  the  said  Article. Learned  counsel says that the interest of public  order  is the only thing in cl. (2) which may possibly be relied  upon by the State as affording a justification for its claim  for the  validity  of the impugned section.  A  law  interfering with  the  freedom of speech and expression and  imposing  a punishment  for  its breach may, says counsel,  be  "in  the interests of public order" only if the likelihood of  public disorder  is  made  an ingredient of  the  offence  and  the prevention  of public disorder is a matter of proximate  and not  remote consideration.  Learned counsel points out  that insulting  the religion or the religious beliefs of a  class of citizens of India may not lead to public disorder in  all cases although it may do so in some case.  Therefore,  where a  law purports, as the impugned section does, to  authorise the  imposition  of  restriction  on  the  exercise  of  the fundamental  right  to freedom of speech and  expression  in language  wide enough to cover restrictions both within  and without  the  limitation  of  constitutionally   permissible legislative  action affecting such right, the  court  should not uphold it even in so far as it may be applied within the constitutionally permissible limits as it is not  severable. So long as the possibility of its being applied for purposes not  sanctioned by the Constitution cannot be ruled  out  it must,  according  to learned counsel, be held to  be  wholly unconstitutional  and void.  Reference has been made to  the cases of Romesh Thappar v. The St-ate of Madras(1) and  Brij Bushan v. The State of Delhi (2).  In  Romesh Thappar’s case, in exercise of powers  conferred on  him  by s. 9(1 -A) of the Madras Maintenance  of  Public Order  Act,  1949, the Governor of Madras,  being  satisfied that  for  the  purpose of securing public  safety  and  the maintenance  of  public order it war,. necessary so  to  do, prohibited  the  entry  into or  the  circulation,  sale  or distribution  in the State of Madras or any part thereof  of the  newspaper  entitled ’Cross Roads’, an  -English  Weekly published at Bombay. (1) (1950) S.C.R. 594. (2) (1950) S.C.R. 605. 864 The  impugned  section-s. 9(1-A)-was a law enacted  for  the purpose of securing the public safety and the maintenance of public  order.  ’Public order’ was said to be an  expression of   wide   connotation  and  to  signify  that   state   of tranquillity   which  prevailed  among  the  members  of   a political  society  as a result of the  internal  regulation

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enforced  by  the  Government which  they  had  established. ’Public  safety’ used in that section was taken as  part  of the wider concept of ’public order’.  Clause (2) of Art. 19, as it stood then, protected a law relating, inter alia, to a matter  which  undermined  the  security  of  or  tended  to overthrow the State.  Some breach of public safety or public order  may conceivably undermine the security of or tend  to overthrow  the State, but equally conceivably many  breaches of public safety or public order may not have that tendency. Therefore,  a law which imposes restrictions on the  freedom of  speech and expression for preventing a breach of  public safety or public order which may not undermine the  security of the State or tend to overthrow the State cannot claim the protection  of  cl.  (2) of Art.  19.   Section  9(1-A)  was challenged  as  it  embraced  both  species  of   activities referred to above and as the section was not severable,  the whole section was held to be bad. In Brij Bushan’s case (supra) the validity of s.  7(1)(c) of the East Punjab Public Safety Act, 1949, as  extended to the Province of Delhi, came. up for consideration.  That section provided  that "the Provincial Government or  any  authority authorised  by  it in this behalf, if  satisfied  that  such action is necessary for preventing or combating any activity prejudicial  to  the  public safety or  the  maintenance  of public  order,  may, by order in writing  addressed  to  the printer,  publisher  or  editor,  require  that  any  matter relating to a particular subject or class of subjects  shall before publication be submitted for scrutiny".  It was  held by this Court (Fazl Ali J. dissenting) that inasmuch as  the section  authorised  the imposition of restrictions  on  the fundamental  right  to  freedom  of  speech  and  expression guaranteed  by Art. 19(1)(a) for the purposes of  preventing activities prejudicial to 865 public safety and maintenance of public order, it was not  a law  solely  relating  to  a  matter  which  undermined  the security  of  or tended to overthrow the  State  within  the meaning  Of  Cl.  (2)  of Art. 19 as  it  then  stood.   The principles  laid down in Romesh Thappar’s case were  applied to this case and the law was held to be void. The case of Chintaman Rao v. The State of Madhya Pradesh (1) has also been relied upon in support of the contention  that where the language employed in the Statute is wide enough to cover  restrictions on a fundamental right both  within  and without   the   limits   of   constitutionally   permissible legislative  action affecting the right and the  possibility of  its  being applied for purposes not  sanctioned  by  the Constitution cannot be ruled out, the law must be held to be wholly void. After this Court decided the cases of Romesh Thappar (supra) and  Brij  Bushan  (supra),  cl.  (2)  of  Art.  19  of  the Constitution was amended.  Clause (2), as amended,  protects a law in so far as such law imposes reasonable  restrictions on the exercise of the right conferred by sub-cl. (a) of cl. (1)  of  Art. 19 "in the interests of the  security  of  the State, friendly relations with foreign States, public order, decency  or  morality or in relation to contempt  of  court, defamation  or incitement to an offence." The  question  for our  consideration  is whether the impugned section  can  be properly  said to be a law imposing reasonable  restrictions on  the  exercise  of the fundamental right  to  freedom  of speech and expression in the interests of public order.   It will  be noticed that the language employed in  the  amended clause is "in the interests of" and not "for the maintenance of".  As one of us pointed out in Debi Soron v. The State of

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Bihar(2),  the  expression "in the interests of"  makes  the ambit of the protection very wide.  A law may not have  been designed  to directly maintain public order and yet  it  may have been enacted in the interests of public order. It is pointed out that s. 295A has been included in  chapter XV  of  the  Indian Penal Code  which  deals  with  offences relating to religion and not in chapter VIII (1) (1950) S.C.R. 759.     (2) A.I.R. (1954) Patna 254. 866 which  deals with offences against the  public  tranquillity and from this circumstance it is faintly sought to be urged, therefore,  that  offences  relating  to  religion  have  no bearing on the maintenance of public order, or  tranquillity and,  consequently,  a law creating an offence  relating  to religion  and imposing restrictions on the right to  freedom of speech and expression cannot claim the protection of  el. (2)  of  Art.  19.  A reference to Arts. 25 and  26  of  the Constitution,  which  guarantee  the  right  to  freedom  of religion, will show that the argument is utterly  untenable. The  right to freedom of religion assured by those  Articles is  expressly  made subject to public  order,  morality  and health.  Therefore, it cannot be predicated that freedom  of religion can have no bearing whatever on the maintenance  of public  order or that a law creating an offence relating  to religion cannot under any circumstances be said to have been enacted  in  the  interests  of  public  order.   These  two Articles  in  terms  contemplate that  restrictions  may  be imposed on the rights guaranteed by them in the interests of public order.   Learned counsel then shifted his ground and formulated his objection  in  a  slightly different way.   Insults  to  the religion or the religious beliefs of a class of citizens  of India may, says learned counsel, lead to public disorders in some  cases,  but  in many cases they may not  do  so  and,, therefore, a law which imposes restrictions on the citizens’ freedom of speech and expression by simply making insult  to religion  an offence will cover both varieties  of  insults, i.e.,  those  which  may lead to public  disorders  as  well as.those which may not.  The law in so far as it covers  the first  variety  may  be said to have  been  enacted  in  the interests  of public order within the meaning of el. (2)  of Art.  19, but in so far as it covers the  remaining  variety will  not  fall  within  that  clause.   The  argument  then concludes  that so long as the possibility of the law  being applied  for  purposes not sanctioned  by  the  Constitution cannot  be  ruled out, the entire law should be held  to  be unconstitutional  and void.  We are unable, in view  of  the language used in the impugned section, 867 to  accede to this argument.  In the first place el. (2)  of Art.  19 protects a law imposing reasonable restrictions  on the  exercise  of  the  right  to  freedom  of  speech   and expression "in the interests of" public order, which is much wider   than  "for  maintenance  of"  public   order.    If, therefore,  certain  activities  have a  tendency  to  cause public  disorder,  a law penalising such  activities  as  an offence  cannot but be held to be a law imposing  reasonable restriction  "in the interests of public order" although  in some  cases  those  activities may not actually  lead  to  a breach of public order.  In the next place s. 295A does  not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but  it  penalises only those acts of insults  to  or  those varieties  of  attempts  to  insult  the  religion  or   the religious  beliefs  of  a  class  of  citizens,  which   are

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perpetrated  with the deliberate and malicious intention  of outraging the religious feelings of that class.  Insults  to religion  offered unwittingly or carelessly or  without  any deli. berate or malicious intention to outrage the religious feelings  of that class do not come within the section.   It only Punishes the aggravated form of insult to religion when it   is  perpetrated  with  the  deliberate  and   malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly  to disrupt the public order and the section,  which penalises such activities, is well within the protection  of cl.  (2)  of  Art. 19 as being  a  law  imposing  reasonable restrictions  on  the exercise of the right  to  freedom  of speech  and expression guaranteed by Art. 19(1)(a).   Having regard  to  the ingredients of the offence  created  by  the impugned  section,  there  cannot, in our  opinion,  be  any possibility  of  this  law being applied  for  purposes  not sanctioned  by  the  Constitution.   In  other  words,   the language employed in the section is not wide enough to cover restrictions   both  within  and  without  the   limits   of constitutionally  permissible legislative  action  affecting the  fundamental  right  guaranteed  by  Art.  19(1)(s)  and consequently, the question of severability does not 868 arise  and the decisions relied upon by learned counsel  for the petitioner have no application to this case. For  the  reasons stated above, the impugned  section  falls well  within the protection of el. (2) of Art. 19  and  this application must, therefore, be dismissed.                           Application dismissed.